Marjorie Cohn
Truthout / November 26, 2024
“The Hague Invasion Act” authorizes the military to forcibly extract US and allied nationals if arrested for war crimes.
The International Criminal Court’s (ICC) stunning issuance of arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant for war crimes and crimes against humanity is a major game changer. After years of impunity, the chickens unleashed by Israel’s genocidal campaign in Gaza have finally come home to roost.
These charges against Netanyahu and Gallant are momentous. This is the first time the ICC has issued arrest warrants against an Israeli official for crimes against the Palestinian people. It is only the second time in its 22 years of existence that the ICC has issued an arrest warrant for someone who is not from the African continent.
Palestinian human rights organizations Al-Haq, Al-Mezan Center for Human Rights, and the Palestinian Centre for Human Rights called the ICC’s decision “a historic and pivotal moment in the battle against Israel’s impunity, in which the Palestinian people have been denied justice, and subjugated for decades under a genocidal, settler-colonial apartheid regime.”
U.S. history of undermining the ICC
The United States had a fraught relationship with the ICC even before it opened for business in 2002. As President Bill Clinton was leaving office, he signed the court’s Rome Statute, stating, “I believe that a properly constituted and structured International Criminal Court would make a profound contribution in deterring egregious human rights abuses worldwide, and that signature increases the chances for productive discussions with other governments to advance these goals in the months and years ahead.”
But Clinton urged incoming President George W. Bush to refrain from sending it to the Senate for advice and consent to ratification. Bush went even further and, in an unprecedented move, unsigned the treaty on behalf of the United States. Since then, the U.S. has consistently tried to undermine the ICC.
In 2003, Congress passed and Bush signed the American Service-Members’ Protection Act, which is known as “The Hague Invasion Act.” It says that if a U.S. or allied national is detained by the ICC in The Hague, Netherlands, the U.S. military can use armed force to extricate them. This would apply to close U.S. ally Israel.
The Bush administration effectively blackmailed 100 countries that were parties to the Rome Statute by forcing them to sign bilateral immunity agreements in which they promised not to turn over U.S. persons to the ICC or the United States would withhold foreign aid from them.
Senate Majority Leader John Thune has introduced bipartisan legislation to sanction ICC prosecutors who try to file charges against Israeli officials. Forty-two Democrats voted for the House version of Thune’s bill.
When he was president, Donald Trump imposed sanctions on ICC prosecutors in a reprisal against the court’s investigations of Israeli leaders, and investigations of U.S. officials for war crimes committed in Afghanistan. Although President Joe Biden reversed Trump’s order in 2021, he reiterated the U.S. government’s “longstanding objection to the Court’s efforts to assert jurisdiction” over Israeli and U.S. personnel.
The Biden administration, which has sent at least $17.9 billion in military aid to Israel since October 7, 2023, denounced the charges against Netanyahu and Gallant. A spokesperson for the National Security Council said in a statement that the ICC has no jurisdiction over Israel, the U.S. is consulting with Israel on “next steps,” and “The United States fundamentally rejects the court’s decision to issue arrest warrants for senior Israeli officials.”
By providing military support and diplomatic cover to Israel, U.S. leaders could be charged under the Rome Statute with aiding and abetting Israel’s war crimes and crimes against humanity. But the ICC is unlikely to file such charges.
Will the U.S. government play spoiler of international justice by invading The Hague to extract the Israeli officials if they are arrested? Sen. Tom Cotton (R-Arkansas) responded to the arrest warrants by invoking The Hague Invasion Act. “Woe to him and anyone who tries to enforce these outlaw warrants,” he warned. “Let me give them all a friendly reminder: the American law on the ICC is known as The Hague Invasion Act for a reason. Think about it.”
War crimes of starvation as a form of warfare and intentional attacks on civilians
On November 21 — Day 441 of Israel’s genocidal campaign which has killed more than 44,000 Palestinian people — the ICC’s Pre-Trial Chamber I announced that it found reasonable grounds to believe Netanyahu and Gallant were co-perpetrators of the war crime of starvation as a method of warfare, committed from at least October 8, 2023, until at least May 20, 2024, the day the Prosecution filed the applications for arrest warrants.
The Chamber found reasonable grounds to believe that Netanyahu and Gallant “intentionally and knowingly deprived the civilian population in Gaza of objects indispensable to their survival, including food, water, and medicine and medical supplies, as well as fuel and electricity.” The Chamber noted the role of Netanyahu and Gallant “in impeding humanitarian aid in violation of international humanitarian law and their failure to facilitate relief by all means at its disposal.”
In addition, the decisions by the two Israeli officials to allow or increase humanitarian aid “were not made to fulfil Israel’s obligations under international humanitarian law or to ensure that the civilian population in Gaza would be adequately supplied with goods in need,” the Chamber concluded. They were, rather, “a response to the pressure of the international community or requests by the United States of America.”
The Chamber also found reasonable grounds to believe that Netanyahu and Gallant bear criminal responsibility as civilian superiors for the war crime of intentionally directing an attack against the civilian population.
Crimes against humanity of murder, persecution and other inhumane acts
Pre-Trial Chamber I found reasonable grounds to believe that Netanyahu and Gallant were co-perpetrators of the crimes against humanity of murder, persecution, and other inhumane acts during the same time period.
“[T]he lack of food, water, electricity and fuel, and specific medical supplies, created conditions of life calculated to bring about the destruction of part of the civilian population in Gaza, which resulted in the death of civilians, including children due to malnutrition and dehydration,” the Chamber concluded. Thus, “there are reasonable grounds to believe that the crime against humanity of murder was committed in relation to these victims.”
Moreover, “by intentionally limiting or preventing medical supplies and medicine from getting into Gaza … the two individuals are also responsible for inflicting great suffering by means of inhumane acts on persons in need of treatment,” the Chamber stated. “This amounts to the crime against humanity of other inhumane acts.”
The Chamber also found reasonable grounds to believe that the conduct of Netanyahu and Gallant “deprived a significant portion of the civilian population in Gaza of their fundamental rights, including the rights to life and health, and that the population was targeted based on political and/or national grounds.” It therefore concluded that they committed the crime against humanity of persecution.
Netanyahu denounced the arrest warrants
Netanyahu’s denunciation of the arrest warrants was swift and strong. He called the ICC’s decision an “antisemitic move with one goal: to deter me, to deter us, from exercising our natural right to defend ourselves against our enemies who seek to destroy us.” He denounced the court as “biased” and said its accusations of “fictitious crimes” are “absurd” and “distorted,” adding, “This is a moral bankruptcy” that impairs the “natural right of democracies to defend themselves against murderous terrorism.”
Israel’s claim of self-defense is spurious. In its 2004 advisory opinion on the “Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,” the ICJ established the non-applicability of self-defense under Article 51 of the UN Charter in the situation between Israel and the Occupied Palestinian Territory. Indeed, the Fourth Geneva Convention requires Israel, as Occupying Power, to protect the occupied Palestinian people. And it is Israel’s genocidal actions, not the ICC’s arrest warrants, that are fomenting antisemitism. The widespread opposition to the genocide is not based in antisemitism, but rather revulsion at the atrocities Israel is committing against the Palestinian people.
The Chamber rejected Israel’s claim that the ICC has no jurisdiction over the Situation in Palestine. The fact that Israel is not a party to the Rome Statute is not a bar to the ICC’s jurisdiction, the Chamber concluded. The State of Palestine has been a state party to the Rome Statute since 2015. The court cited its February 2021 decision, in which Pre-Trial Chamber I held that the court could exercise criminal jurisdiction in the Situation in Palestine and that the territorial scope of this jurisdiction extended to Gaza and the West Bank, including East Jerusalem.
Parties to the Rome Statute say they would send Netanyahu and Gallant to The Hague
Now, all 124 states parties to the Rome Statute have a legal obligation to arrest Netanyahu and Gallant and send them to the ICC if they are caught in the state’s territory. Several states parties — including Canada, Italy, the U.K., Belgium and the Netherlands — have expressed their intention to comply with this legal duty.
“The states that signed the Rome convention are obliged to implement the decision of the court. It’s not optional,” High Representative of the European Union for Foreign Affairs and Security Policy Josep Borrell said while in Cyprus for a meeting of Israeli and Palestinian peace activists.
But if any country sends Netanyahu and Gallant to The Hague, the U.S. may well send troops in to extract them.
Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, dean of the People’s Academy of International Law and past president of the National Lawyers Guild
